Appeal of Death Row Case Is More Than a Matter of Guilt or Innocence

No one saw Rob Will shoot and kill Harris County Deputy Sheriff Barrett Hill in the still-black morning hours in a Houston bayou on Dec. 4, 2000. No physical evidence linked him to the murder.

Mr. Will, now on death row, said that he is innocent, but that he has been represented by ineffective lawyers. He has a new lawyer who faces the daunting challenge of representing Mr. Will at this late stage in his appeals.

Witnesses have testified that another man confessed to Deputy Hill’s murder. But in a January ruling, Judge Keith Ellison of United States District Court lamented that even though he was concerned Mr. Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

Mr. Will’s best chance for a new trial may lie with an Arizona case that the United States Supreme Court is soon expected to rule on. States across the country are anxiously awaiting the ruling, which could establish that defendants have a constitutional right to adequate appellate lawyers. For some states, that could require major spending on court-appointed lawyers for thousands of convicts.

Mr. Will said that Michael Rosario, the man he was with the morning of the slaying, shot Deputy Hill. Since Mr. Will was sentenced to death in 2002, four witnesses have testified that Mr. Rosario — a Houston police officer’s son with a long felony history — confessed. The state has argued that the witness statements are not credible.

On the morning of the shooting, Mr. Will, who was 21 and had a criminal history, and Mr. Rosario were stealing parts from a car when two deputies arrived. Mr. Will and Mr. Rosario ran in different directions. Deputy Hill chased Mr. Will, and Deputy Warren Kelly pursued Mr. Rosario.

Deputy Hill radioed that he had Mr. Will in custody. Deputy Kelly radioed that he had lost track of Mr. Rosario. Eight seconds later, the radio recorded gunfire, gasping sounds and more gunfire.

Deputy Kelly saw Mr. Will flee to a nearby apartment complex. A woman who had been sleeping in her car told the police that Mr. Will had held a gun to her neck, said he had “just shot a policeman” and then stole her car.

Deputy Hill’s body was found about a half-hour later along with seven spent shell casings. Mr. Will was arrested about 90 miles west of Houston near Brenham. He had a pistol and was bleeding from his left hand.

At Mr. Will’s 2002 trial, his lawyers argued that after losing the other officer, Mr. Rosario found Deputy Hill and Mr. Will, shot the deputy, freed his friend and took off. A cellmate of Mr. Rosario’s told the jury that Mr. Rosario said “he had no choice but to shoot the cop” and that because his dad was an officer there was “nothing anybody could do.”

Harris County prosecutors argued that as Deputy Hill tried to arrest Mr. Will, the young man shot the deputy in his bulletproof vest. The deputy fell over, and Mr. Will shot him in the head and face. They said Mr. Rosario did not have enough time to run to where the two were.

The lawyer Christopher Downey defended Mr. Rosario against charges related to the car parts theft. He no longer represents Mr. Rosario, and he said his former client, who has been in and out of prison, is “no saint.” But he said Mr. Rosario, who was not charged in the murder, has repeatedly denied that he shot Deputy Hill.

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Rob Will

Mr. Will was found guilty and sentenced to death.

In Mr. Will’s first appeal, his first state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Mr. Will’s case. Mr. Ribnik defended his work. In 2006 Mr. Ribnik asked the Texas Court of Criminal Appeals to remove him from the list of approved death penalty defense lawyers.

That initial appeal is the main sticking point in Mr. Will’s case. Federal courts cannot consider claims an inmate did not raise from the beginning of the process. In 2006, when Kenneth Williams, an appellate lawyer with 20 years of death row experience, took over, he knew the odds were long.

He filed an appeal in 2007, arguing that Mr. Will was innocent and that his previous counsel was ineffective, and he filed affidavits from three other cellmates of Mr. Rosario, who said he had confessed.

Another key piece of testimony came from Mr. Will’s ex-girlfriend. At a 2011 hearing, she testified that Mr. Rosario had come to her apartment with blood on his pants and on one of his shoes. He told her that he had shot the deputy and then tried to shoot the handcuffs off Mr. Will.

Lawyers for the Texas attorney general’s office argued that the testimony was unreliable and that Mr. Will had tried to bribe witnesses. They said Mr. Will should have presented his claims earlier.

In his ruling denying a new trial, Judge Ellison said that the lack of physical evidence linking Mr. Will to the crime and the reports that Mr. Rosario had confessed gave him pause, but that he could not simply overturn the conviction. Judge Ellison wrote that Mr. Will had not presented enough evidence to show that Mr. Will’s claims of innocence and shoddy lawyering warranted a new trial. “The court laments the strict limitations placed upon it,” Judge Ellison wrote.

After the January ruling, Mr. Williams withdrew as Mr. Will’s lawyer. His new court-appointed lawyer, Samy Khalil, is preparing an appeal of Judge Ellison’s ruling. It is due this month. He declined to comment and refused to authorize an interview with Mr. Will, now 33.

Mr. Will’s best hope may be an the Arizona case, Martinez v. Ryan. The Sixth Amendment guarantees a right to adequate trial lawyers, but the issue in Martinez v. Ryan is what happens when a defendant’s trial lawyer is ineffective and then a state appellate lawyer fails to make an argument on the defendant’s behalf that the ineffective representation at trial led to the conviction.

If the high court rules a constitutional right to effective appellate counsel exists, then Mr. Will could attempt to argue that his rights were violated when Mr. Ribnik filed boilerplate documents and failed to raise other claims, said Lee Kovarsky, an assistant professor of law at the University of Maryland Francis King Carey School of Law.

Even if the court rules in the Arizona defendant’s favor, though, the bar for Mr. Will’s argument is high, Mr. Kovarsky said. He would have to prove that both his appellate lawyers and his trial lawyers were ineffective. And Judge Ellison has ruled that Mr. Will’s trial lawyers performed adequately.

Nearly every week, Dawn Bremer drives 90 miles from her Spring home to the state prison in Livingston to visit Mr. Will. She is among a cadre of advocates who believe he is innocent and fear he will be executed because of a legal technicality.

“He’s not some monster as he’s been depicted,” she said.

Ms. Bremer said that Mr. Will had had an abusive childhood and that his father was murdered when he was a boy.

Mr. Will had his run-ins with the law, she said, but he was beginning to turn things around.

“He just chose the wrong friends,” Ms. Bremer said.

Correction: March 25, 2012

An article on March 11 about Rob Will, a death row inmate in Texas, misstated the circumstances surrounding the removal of Leslie Ribnik, Mr. Will’s state-appointed habeas lawyer, from the list of approved death-penalty-defense lawyers. Mr. Ribnik asked to be removed from the list; he was not removed because of his performance.

bgrissom@texastribune.org

A version of this article appears in print on March 11, 2012, on Page A23A of the National edition with the headline: Appeal of Death Row Case Is More Than a Matter of Guilt or Innocence. Order Reprints|Today's Paper|Subscribe